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FAQ: Vaccines for Educators

November 4, 2021

Disclaimer: This publication is for informational purposes only and is not intended as a

substitute for specific legal or other professional advice. If you have specific questions about

your legal or contractual rights, contact your Education Minnesota field representative. This

ages 5 and older. Moderna and Johnson and Johnson vaccines are also available to all residents

16 and older.

Minnesotans who are over the age of 65, have underlying health conditions, or who have higher

risk based on where they live or work (this includes all educators) are now eligible for a booster

shot of the COVID vaccine. For more information about booster shots and eligibility, visit the

Minnesota Department of Health website.

2. If I have not yet signed up for a vaccine, how do I sign up?

4. What is the most recent guidance from the CDC and MDH for K-12 schools, and how

will it impact requirements for Minnesota schools this fall?

Following the release of revised masking and safety guidelines by the CDC, MDH has recently

released its own guidance regarding best practices for the 2021-22 school year that will align

with the CDC’s recommendation. These recommendations are particularly directed to

implementing layered prevention strategies (using multiple prevention strategies together

consistently) to protect people who are not fully vaccinated. Some of the main issues covered in

the guidance:

• All people ages 12 years and older should get vaccinated for COVID-19 before returning

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• Schools should maintain at least 3 feet of physical distance between students within

classrooms whenever possible.

• Students, teachers, and staff should stay home if they have signs of any infectious illness,

and should contact their health care provider for testing and care.

• Students, teachers, and staff who have been fully vaccinated do not need to stay home

even if they have had recent close contact with a confirmed case so long as they remain

asymptomatic and do not test positive. Follow CDC testing guidance for anyone exposed

to a confirmed case.

• People who are not fully vaccinated and returning to in-person school, sports, or

extracurricular activities (and their families) should get tested regularly for COVID-19

cleaning, and disinfection as important layers of prevention to keep schools safe.

employees?

Biden Administration announced that the U.S. Department of Labor’s Occupational Safety and

Health Administration (OSHA) will soon require all employers with 100 or more employees to

ensure that they are either fully vaccinated against the coronavirus or get tested at least once a

week. A summary of OSHA’s new Emergency Temporary Standard (ETS) is available here.

Below are some key elements of the proposed rule:

• Coverage. The ETS applies to all employers of 100 or more employees (except those

employed by the federal government) whether they are public or private, meaning that all

public, private, and charter schools as well as higher education institutions are covered as

and wear a face covering at the workplace.

• January 4 deadline. While the ETS takes effect immediately following its publication

on November 5, the deadline for covered employees to have their final vaccination dose

(second shot for Moderna or Pfizer, first shot for J&J) or provide their first negative test

to their employer and wear a face covering is Tuesday, January 4.

• Proof of vaccination required. The ETS requires employers to determine the

vaccination status of each employee, obtain acceptable proof of vaccination, maintain

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records of each employee’s vaccination status, and maintain a roster of each employee’s

vaccination status.

employees, but Minnesota law requires employers to pay these costs, so unions should

consider proposing in bargaining that employers must pay any testing costs to ensure

compliance. If unions are unsuccessful in bargaining this language, employers will still

be required to pay any testing costs not covered by an employee’s insurance.

Although this new rule makes it unlikely that any covered employer would need to bargain over

a vaccine mandate itself, we still encourage all affected locals to bargain the impact of the policy

on terms and conditions of employment, such as access to testing, employee privacy, and any

other staff safety measures above what the ETS requires. The latest version of our sample

vaccine MOU is available here.

from a medical provider.

a. Students

Schools and child care facilities are currently required by state law to ask parents and guardians

to provide documentation that students have received immunization against a number of

diseases, including tetanus, polio, and hepatitis B, subject to exceptions for those who have a

medical reason for declining or a conscientious objection to vaccination, with required

documentation. COVID-19 is not currently a required immunization, but the Legislature could

add it. The Department of Health also has the authority to add the COVID-19 vaccine to the list

passed a policy requiring all students ages 12 and older to be vaccinated against COVID-19 by

December 19 in order to attend in-person classes.

b. Staff

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In May, the Equal Employment Opportunity Commission, which enforces and provides guidance

on federal anti-discrimination laws, issued guidance stating that employers could mandate that

employees be vaccinated, provided that the employer makes accommodations for employees

who do not get vaccinated because of a disability or a sincerely held religious belief. (See section

K). In addition, the Fifth Circuit Court of Appeals recently held that a hospital in Texas had the

right to require its employees to get vaccinated against COVID-19. Although this decision is not

binding in Minnesota, it is persuasive, and it relied on a prior Supreme Court decision upholding

the constitutionality of vaccination mandates.

Because the requirement to be vaccinated is a term and condition of employment, employers

here. If a federal or state government vaccine mandate takes effect, the requirement itself may

not be subject to bargaining, but any effects of that mandate not required by law still are.

Based on this guidance, it is likely the case that schools may legally ask staff whether or not they

are vaccinated, but they should not ask additional information about an employee’s health

condition unless it is for the purpose of making an exception to a vaccine mandate based on

disability or religion. Employers should also maintain this information in confidence, as it likely

constitutes private personnel data under Minnesota law.

6. Do schools have the legal authority to require students and staff to wear face coverings if

they are not fully vaccinated?

in question 5 above, this would be done on an honor system.

7. Do schools have the legal authority to require students and staff to submit to regular

from the state or federal government. Schools will need to seek their own counsel regarding the

legality of mandating testing for students.

Districts may be able to require that unvaccinated staff participate in regular screening testing;

however, we would consider required testing of staff a mandatory subject of bargaining, and

suggest that locals work on an MOU that specifies:

• Who will administer the tests and how often;

• Whether or not the tests will occur on worktime (staff would need to be paid for time

spent getting tested outside the workday); and

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8. Will Education Minnesota represent members who are disciplined for refusing to get

We can’t make a definitive guarantee that we would or would not represent a member who

refuses to get a vaccine at this time since there is still a great deal about vaccine implementation

for school employees that we don’t know. In discipline cases outside of teacher terminations,

local unions would have a say in whether a case goes to hearing. In all cases, our ability to be

successful would depend on the specific reason(s) the educator refused vaccination and whether

the policy was negotiated with the exclusive representative. Education Minnesota will advocate

Minnesota Public Radio interview on MDH Commissioner Jan Malcolm and infectious disease

director Kris Ehresmann on COVID-19 and children:

https://www.mprnews.org/story/2021/07/14/concerned-about-children-and-the-covid-variants-

heres-what-you-need-to-know

Reuters fact check of false claims that COVID vaccines are experimental or have not been

response/coronavirus-disease-2019-covid-19/covid-19-vaccines

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